The Independent Monitoring Authority for the Citizens’ Rights Agreements has been successful in a landmark High Court case which will help provide clarity for millions of citizens with pre-settled status.
The IMA (based in Swansea) was established to ensure that public bodies uphold the rights of EU and EEA EFTA citizens, and certain members of their families, living in the UK and Gibraltar. It challenged the Home Office’s position that citizens with pre-settled status must make a second application to the EU Settlement Scheme (EUSS) or face losing their rights under Part 2 of the Withdrawal Agreement.
During a judicial review hearing at the Royal Courts of Justice on 1 and 2 November, the IMA argued that it was unlawful for citizens to lose their rights if they failed to either apply for settled status, or in some circumstances re-apply for pre-settled status, before the expiry of their pre-settled status.
Currently all citizens with pre-settled status must apply for settled status after they have lived in the UK for five years. If they do not apply, they will lose their residence rights in the UK under the current system. This means they will also lose rights dependent on this, including the ability to work in the UK, receive healthcare and education and apply for housing and benefits.
In the judgment which was handed down on 21 December, Mr Justice Lane ruled that a right of residence can only be lost in very specific circumstances which are clearly defined in the EU Withdrawal and EEA EFTA Separation Agreements.
A loss of rights for failure to upgrade from pre-settled to settled status was not one of those circumstances, and so by imposing a requirement to upgrade residence status the Home Office was acting unlawfully. The judge also said that those granted pre-settled status are entitled to reside permanently in the UK once they have resided there for the required five-year period.
As a result of his findings, the judge has made a declaration that the EUSS in these respects, as it is currently operating, is unlawful.
The IMA understands that the Home Office is seeking permission to appeal the decision. While that process continues, no changes to the current design of the EUSS are expected and therefore holders of pre-settled status should continue to apply for settled status where they are eligible.
Dr Kathryn Chamberlain, IMA Chief Executive said:
“I am pleased that the judge has recognised the significant impact this issue could have had on the lives and livelihoods of citizens with pre-settled status in the UK.”
“When we brought this judicial review, our intention was to provide clarity for citizens with pre-settled status, of which there were approximately 2.2 million when we filed this case in December 2021. This judgment that the current system is unlawful provides that clarity. We will now liaise with the Home Office on the next steps.”
Rhys Davies, IMA General Counsel said:
“The Withdrawal and Separation Agreements say that people can only lose their rights in a limited set of circumstances and failing to upgrade from pre-settled to settled status is not one of them.
“We brought this case as we wanted to avoid the risk that citizens with pre-settled status who fail to make a second application to the EUSS after the expiry of their pre-settled status following five years of residence in the UK, lose their rights. The earliest point this could happen is in August 2023, marking five years from the earliest grants of pre-settled status.”
